13th AMENDMENT INCOMPATIBLE with LLRC RECOMMENDATIONS on DEVOLUTION

Neville Ladduwahetty

The recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) have come to be accepted as the holy-grail by the International Community judging from the repeated references to it both nationally and internationally in complete disregard to the Government’s National Plan of Action that was developed by incorporating selected recommendations in the LLRC Report. In fact, this acceptance has led many to believe that the implementation of the LLRC recommendations would bring much needed relief to Sri Lanka’s bruised image.

Since it was the search for a political solution that led to the three decade long conflict, it is relevant to critically examine the recommendations of the LLRC in regard to what the Commission considers should be the contours of a political solution that would foster reconciliation and a durable peace. With this in view, given below are all the relevant paragraphs (9.229 to 9.237) in the LLRC Report under the header “THE NEED FOR DEVOLUTION OF POWER”.

“The need for devolution of power”

9.229 Many persons who appeared before the Commission stated in clear terms that reaching a political consensus that will facilitate devolution of power to be of critical importance, to further the process of reconciliation after the ending of LTTE terrorism, which was the main obstacle against achieving such a consensus for a long time.

9.230 It is vital that the Government should provide leadership to a political process which must be pursued for the purpose of establishing a framework for ensuring sustainable peace and security in the post-conflict environment. In this endeavour the rights of all communities, including those who have been members of the LTTE, must be ensured. To this end a political settlement based on devolution must address the ethnic problem as well as other serious problems that threaten the democratic institutions. This political process should culminate in a constitutional foundation and mechanisms that provide opportunities for development and implementation of necessary socio-economic policies.

9.231 Devolution should necessarily be people-centric in nature and the following considerations should be borne in mind –

a. Devolution should essentially promote greater harmony and unity and not disharmony and disunity among the people of the country. The promotion of this ‘oneness’ and a common identity should be the principal aim of any form of devolution while protecting and appreciating rich diversity.

b. The focus should be to ensure that the people belonging to all communities are empowered at every level especially in all tiers of Government. Devolution of power should not privilege or disadvantage any ethnic community, and in this sense, should not be discriminatory or seen to be discriminatory by the people belonging to any ethnic community within the country.

c. The democratic empowerment of the people should take place within the broader framework of the promotion and protection of human rights which is a fundamental obligation of the elected government deriving from specific provisions of the Constitution and the Treaty obligations the country has voluntarily undertaken.

d. In addressing the question of devolution two matters require the attention of the government. Firstly, empowering the Local Government institutions to ensure greater peoples’ participation at the grass roots level. Secondly, it is also imperative that the lessons learnt from the shortcomings in the functioning of the Provincial Councils system be taken into account in devising an appropriate system of devolution that addresses the needs of the people. It should at the same time provide for safeguarding the territorial integrity and unity of Sri Lanka whilst fostering its rich diversity.

One of the LLRC sittings. File photo

9.232 An additional mechanism that may be considered is the possibility of establishing a Second Chamber comprising Representatives from the Provinces. Such a mechanism is likely to generate a sense of confidence among the political leadership and among the people in the Provinces, that they too have a vital role to play in the legislative decision making process, inter alia, by examining legislative measures that may have a bearing on issues of particular relevance to the Provinces.

9.233 All parties should recognize that the real issue of sharing power and participating in government is the empowerment of the people and making the political leaders accountable to the people. This applies to Sri Lanka as a whole and includes the needs of citizens of all communities, Sinhala, Tamil, Muslim and others. The effective functioning of the democratic system which fulfils these needs, together with a consensual framework of devolution will, by virtue of attributes and institutions intrinsic to it, also provide the answer to the grievances of minorities.

9.234 All parties must commit themselves to finding solutions internally through negotiation with each other. The Tamil leaders should take account of the unnecessary internationalization of the ethnic issue and the external pressures exercised by the Diaspora and its impact on the negotiations for a political settlement. The perceptions of external threat and intervention can create a sense of insecurity that can seriously impede the progress towards an acceptable solution.

9.235 The Commission is of the view that it is an imperative that any devolutionary or power sharing mechanism should be realized within the broad framework of a sovereign, politically independent and multi-ethnic Sri Lankan State. While the distribution of meaningful powers to the periphery is essential, there are powers which form the core responsibilities of the State and which cannot be so devolved, and need to be retained and exercised by the Government at the centre. It is also important to ensure that any power sharing arrangement has inbuilt mechanisms that would effectively address and discourage secessionist tendencies and safeguard the sovereignty and integrity of the State.

9.236 The Commission wishes to underline the critical importance of making visible progress on the devolution issue, in order to ensure the success of any process of lasting and sustainable reconciliation. The Commission therefore recommends that the present opportunity be utilized to launch a good-faith effort to develop a consensus on devolution, building on what exists – both, for maximum possible devolution to the periphery especially at the grass roots level, as well as power sharing at the centre. This consensus should be one that will enable peoples’ participation in governance decisions affecting them and avoid costly and unnecessary duplication of political, bureaucratic and other institutional structures that hamper efficient, cost-effective and transparent governance.

9.237 To this end, the Government must take the initiative to have a serious and structured dialogue with all political parties, and those representing the minorities in particular, based on a proposal containing the Government’s own thinking on the form and content of the dialogue process envisaged. That dialogue must take place at a high political level and with adequate technical back-stopping.

Key features in the recommendations

1. “…safeguarding the territorial integrity and unity of Sri Lanka whilst fostering its rich diversity”.

2. “It is also important to ensure that any power sharing arrangement has inbuilt mechanisms that would effectively address and discourage secessionist tendencies and safeguard the sovereignty and integrity of the State”.

3. “The Commission therefore recommends that the present opportunity be utilized to launch a good-faith effort to develop a consensus on devolution, building on what exists – both, for maximum possible devolution to the periphery especially at the grass roots level, as well as power sharing at the centre”.

13th Amendment incompatible with the recommendations

The 13th Amendment recognizes the Province as the peripheral unit. A three decade long conflict was waged to create a separate state consisting of the Northern and Eastern Provinces. Taken together the two provinces amount to a 1/3 of Sri Lanka’s land mass and 2/3 of its coastline. The Province as the peripheral unit is a threat to the territorial integrity and unity of Sri Lanka because its size, both in terms of land mass and length of coastline, together with access to the natural resources such as Trincomalee Harbour, present prospects that are too tempting to discourage secession.

The 13th Amendment has no provision for “maximum devolution to the periphery especially to the grass roots levels” since all powers are devolved ONLY to the Province. No powers are constitutionally devolved to the grass roots levels. According to Article 154G (1) “Every Provincial Council may, subject to the provisions of the Constitution make statutes applicable to the Province for which it is established with respect to any matter set out in List I of the Ninth Schedule”. Since every Provincial Council MAY make statutes the task of maximum devolution especially to the grass roots levels is left entirely to the discretion of each Provincial Council; an arrangement that is totally unsatisfactory and would inevitably lead to devolved powers being asymmetric among the Provinces.

The 13th Amendment has no provision to share power at the Centre. Consequently, all peripheral units are excluded from participating in the Executive branch of the Government. Whatever representation there is for the periphery at the Centre, is only in Parliament. The reference in the LLRC report to a Second Chamber is a feeble attempt for the provinces to be represented at the Centre. Parliament is already representative of the provinces and the communities within them. Therefore, the major communities need to be represented in the Executive. This is not provided for in the 13th Amendment.

A compatible arrangement

A peripheral unit that would offer greater guarantee of territorial integrity, dissuade secession and foster diversity would be the District, with the provision that no two or more Districts are permitted to merge as in the Constitutions of the US and Switzerland; a precaution that is not provided for in the 13th Amendment. Powers devolved to the Districts, Pradeshiya Sabhas and Gramarajas based on the principle of subsidiarity would meet the recommendation in the LLRC of maximum devolution to the grass roots levels.

Since Parliament is already representative of communities and territories, the need is to provide for the major communities to share Executive power at the Centre in order to foster inclusion of all communities in executive decision-making processes on an equitable basis. Such an arrangement should be constitutionally provided for and could be based on the ratio of ethnic representation in Parliament.

The strident call both nationally and internationally is for the implementation of the LLRC recommendations. Equally strident is the regional call to implement the 13th Amendment.

While LLRC recommendations have been accepted internationally, the 13th Amendment is an internal constitutional arrangement.

However, the incompatibility between the two requires that a choice is made.

Since recommendations of the LLRC pertaining to devolution are a key to reconciliation the Government could justifiably abrogate the 13th Amendment and replace it with a fresh amendment introduced in keeping with the arrangements proposed above for devolution to peripheral units such as the District, Pradeshiya Sabhas and Gramarajas together with Executive power sharing at the Centre, which are all compatible with the recommendations of the LLRC.